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21 September, 2013

Killing the Copyright Monopoly - A Counter-Argument

Recently I stumbled upon Rick Falkvinge's article titled "At What Point Will The Next Generation Kill The Copyright Monopoly Altogether?", which raised some thoughts I wanted to express due to the article's incredibly one-sided nature. Although the title screams hyperbole, I had to address some points made by Mr. Falkvinge from the perspective of someone who has been dealing with copyright for several years, yet has grown up as a part of the generation which was engulfed in the opportunities given by both analog technologies, and finally the Internet, in copying and enjoying a variety of media.

Mr. Falkvinge introduces the subject matter through the emergence of the compact cassette, and the possibilities it presented for copying through tape decks. This prompted a campaign by the music industry against this new wave of activity, calling for the end of copying music onto tapes. In summarizing this new activity on part of the record industries, Mr. Falkvinge states that "...this was the start of the war against ordinary people copying, something that has only escalated to ridiculous levels today." In further expanding on this point, Mr. Falkvinge argues that "...[t]oday, people’s homes are raided at dawn by police with drawn weapons for listening to music and watching movies from unauthorized sources... Activists’ voices are being silenced using the copyright monopoly as a censorship mechanism. Secondary and tertiary liability is introduced using extortionate methods, further removing any rights to due process for mere freedom of speech. All while people in general share knowledge and culture as they have always done."

Mr. Falkvinge presents these scenarios as a common occurrence, whereas one can argue that instances of home raids are rare bar the few instances that are more openly reported on, for example a recent one which happened in Finland. This writer could not find any legitimate sources with statistics as to the amounts of home raids conducted in a year over copyright infringement, but one can imagine this is not something that happens often due to the sheer costs and public image issues relating to the raids. Whether copyright is used in order to curb peoples' freedom of speech is something which this writer has not heard of either; however should any injunctions be placed on individuals or organizations one can argue this was done through the right avenues and under the rule of law.

The mere sharing of knowledge and culture wholly changes the purpose for which copyright legislation exists: the promotion of creation and sustaining those who choose to make it their livelihood. Copyright in itself as a monetary incentive is imperative for the enablement of authors, artists and musicians, without which their output would be severely hindered in today's society. Storytellers and artists hundreds of years ago did not need for themselves to be supported by the income given to them through a system like copyright, but were paid through what was referred to as "arts patronage". One could argue that copyright is a modern incarnation of patronage.

In Mr. Falkvinge's mind copyright has "...turned from something arcane that people didn’t care about into a downright oppressive and abusive construct that affects everybody in a way they strongly disapprove of. Laws must have the consent of the governed to be respected; the copyright monopoly today enjoys considerably less respect than speed limits, and that’s in a country where speeding is considered a national sport." What needs to be said is the existence of the rule of law, as I mentioned above. Not all people agree with all laws, and such they are compromises as viewed by modern representative democracies in their various versions. Whether a person agreed with a law or not should not be the determining factor for when laws should be abolished. The lack of respect for laws should not serve as a platform from which to further encourage their disregard, but as a platform from which to encourage reform and development using the right methods and pathways to achieve this change.

Copyright laws have not failed consumers or become a "weapon" of sorts, but merely are a painful reminder as to the lack of adaptation on part of copyright holders and content providers. Services like Spotify and Netflix have caused piracy rates to plummet in the countries where they have been introduced, showing a clear way to mitigate this issue; convenience and pricing. Consumers today wish for a convenient way to enjoy their entertainment without having to pay exorbitant amounts for that content. When the needs of the consumer meet with the provision of the content via reasonable means, the underlying cause for piracy is gone. There is no way for piracy to be eliminated completely, either through legislative means (both the reduction or increase of penalties and restrictions) or through availability. There will always be those who do not respect the framework of copyright.

Mr. Falkvinge does promote copyright reform on his own part, and this writer for one does agree to a certain extent. Fair dealing (or fair use in the US) needs to be broadened and better accommodate modern uses of content. Steps are being taken in the UK and Australia for example, to improve and bring copyright to the modern world, attempting to introduce changes that have been needed for a long time. Canada has also taken strides in modernizing its copyright laws, both through the hands of the legislature and the judiciary. The United States has yet to take similar steps, but calls have been made and reform should happen in the future.

The world of copyright is not, and should not be viewed as, merely black and white; a world where only abusers and the abused exist. Copyright has enabled great things and helps to further usher new creative minds into all spheres of arts. Is the system perfect? By no means, and reform will happen depending on the influence the people of various countries assert on their legislature. Anarchy does not bring about change, but harbors a culture of further restriction and stricter enforcement.

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IP Iustitia is a blog that discusses intellectual property law (sometimes dipping into associated topics as well) all over the world, attempting to decipher IP law for those who engage with it once in their life, on a daily basis and anywhere in between.

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The Author

Jani Ihalainen (LL.B. (Hons), LL.M.), is a law graduate with a passion for all that is intellectual property law, residing in London, UK.
He also currently works for an international law firm in the City of London.

The name of a company, much like the names of people, carries significant weight in the company's identity in the mind of the consumer a...

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